R v McKeown

[2022] NSWDC 720

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v McKeown [2022] NSWDC 720

Hearing dates:

24 November 2022

Date of orders:

24 November 2022

Decision date:

24 November 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 4 years 1 month with a non-parole period of 2 years 1 month.

Catchwords:

CRIME – Supply prohibited drug greater than or equal to large commercial quantity

SENTENCING - Relevant factors on sentence – early plea - Form 1 - rolled up drug quantity – multiple supplies - middle man with access to upline supplier - drug user in financial difficulty due to COVID loss of work - demonstrated progress toward rehabilitation - special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1995

Cases Cited:

Hamzy v R (1994) 74 A Crim R 341

Jadron v R [2015] NSWCCA 217

Category:

Sentence

Parties:

Brock McKeown (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr Z Khan (for the offender)

Solicitors:
Legal Aid NSW (for the offender)
Mr L McGonigal (for Director of Public Prosecutions)

File Number(s):

2021/00276745

SENTENCE – EX TEMPORE REVISED

Introduction

1. Brock McKeown today confirmed a plea of guilty that he had entered in the Local Court to one charge of supplying the prohibited drug methylamphetamine in not less than the large commercial quantity: s 25(2) Drug Misuse and Trafficking Act 1995. That offence carries a maximum penalty of life imprisonment and for a matter taking into account only objective factors which fall in the middle of the range there is a standard non‑parole period of 15 years imprisonment. That maximum and the standard non‑parole period are important guides to the exercise of the Court’s sentencing discretion. While content has to be given to the standard non‑parole period that does not mean that I start with the maximum or the standard non‑parole period and make proportional deductions from it.

2. When I sentence McKeown for that offence. he also asks that I take into account a matter on a Crimes (Sentencing Procedure) Act 1999 Form 1, the offence of dealing with the proceeds of crime. It is appropriate that I do so. He has admitted his guilt in relation to that matter. When he was arrested, he was in possession of $10,000. That sum represents a payment for one of the transactions that brings him before the Court. It is an example of the overall drug supply operation he was running and of the amounts of cash involved. Because the matter on the Form 1 is illustrative of McKeown’s overall criminality and as I will be having regard to a series of transactions involving supply of drugs for cash when I formulate my sentence, it would be wrong if I were to double count those facts by taking into account both when I come to assess the overall criminality of his actions and then again as part of a Form 1. This is a matter where the Form 1 allows for the slate to be cleared.

Agreed Facts

3. There are agreed facts before the Court. I will summarise them. A police operation, which used what is euphemistically referred to as “electronic evidence” targeted the present offender, amongst others. Police were aware that he was the upline supplier of another man and that they were meeting, sometimes daily, in Campbelltown.

4. Telecommunication warrants were obtained, and physical surveillance was conducted. During this surveillance period 19 individual supplies were detected. In 17 of them quantities were discussed. In two transactions the offender told his co‑accused that there was a shortfall of $1,250 in money that had been paid to him. It was calculated and it is accepted that overall, between 25 August and 28 September 2021, 507.9 grams of methylamphetamine was supplied.

5. The large commercial quantity of the drug is 500 grams. The accumulation of drug quantities to allow for one specific charge was here entirely appropriate and was accepted by the defence: Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217. It is axiomatic that rolled up quantities involve a series of criminal acts so care needs to be taken not to double count matters commonly regarded as aggravating features. Here a series of criminal acts referred to in s 21A(m) Crimes (Sentencing Procedure) Act 1999. Although the number of occasions drugs were supplied still remains a relevant consideration.

6. The advantage to the offender in the use of rolled up charges is that it restricts the maximum available sentence to that prescribed by the legislation for the single offence, rather than the total theoretical available maximum from multiple charges. The disadvantage here is that, as the quantity of drugs sets the penalty range, the rolled-up quantity puts him into the large commercial range with its high maximum penalty and standard non‑parole period. That said, in every sentencing exercise the whole of the conduct of the offender the subject of charges, must always be considered regardless of how the charges come before the Court for sentence. In every sentencing exercise a judge must consider and assess all relevant matters including, of course, what was done.

7. The agreed facts set out the 19 supplies in detail, but each followed a similar pattern; calls would be made, rudimentary codes were used. Various amounts were supplied. They varied between just under 24 grams to about 39 grams. An example of the price was supply 16 where 28 grams of methylamphetamine were supplied for $8,000. Given the time and the state of the list today I will not read all of those matters on the record.

8. The offender was arrested with a co‑accused on 28 September 2021, he had just completed the last supply transaction. It involved 35 grams of methylamphetamine for $10,000; the subject of the proceeds matter. He has been in custody ever since. The money was seized and another $1,000 was located on him together with methylamphetamine.

9. A search warrant was executed in the accused’s home. There police found other matters that indicated criminal activity but were not the subject of charges.

10. The accused participated in a record of interview. He made admissions to being the upline supplier to the co‑offender. He said he would supply; an “8 ball,” an eighth of an ounce (hence the term 8 ball) for $1,000, $4,000 for half an ounce and $8,000 for an ounce. He provided a translation of some codes used in the intercepted calls. It appears he cooperated with the police. I note that although we moved to imperial measures last century drug dealers still use ounces or fractions of ounces.

Other matters

11. McKeown’s early plea of guilty means I must reduce the otherwise appropriate sentence by 25%. I also have to consider his criminal record. He has been before the Court on other occasions. He is not entitled to the leniency often given first offenders. But it is not an extensive record and his prior matters only resulted in fines. It would appear that with the exception of his drug use and then his drug supply activities he is a person who can lead a law-abiding life in the community.

Objective seriousness

12. McKeown offended against the community; he offended against the community in a particularly serious way. As a result of his activity half a kilo of the illicit drug methylamphetamine was distributed. Half a kilo, it is presumed, was consumed by individual users. Day in day out the community experiences the depredations of people who commit crimes while affected by methylamphetamine or who want to obtain funds to pay for methylamphetamine. Today’s sentencing and appeal list provides good examples of those harms.

13. The harm done by the sale and distribution of illicit drugs in the community is one measure of the seriousness of what this man did. The quantity of drugs is another measure; although not determinative of penalty. McKeown adopted a role of a middleman. He had access to, obviously, large supplies of methylamphetamine and the people who supply that drug. He was able to obtain 28 grams or similar quantities on regular occasions. He supplied on regular occasions. He was able to meet his customers’ demand. He did not involve himself in the street level distribution of the drug removing himself from the risks that are often associated with such activity. His crimes were only stopped by good police work. That police work was assisted by the fact that his operation was not sophisticated; he used rudimentary codes.

14. The material before me indicates that he has been himself for many years a user of the drug. I am prepared to accept that given what at the relevant time was his precarious financial situation and what appears to be an addiction to the drug the chance to supply the drug provided him with an opportunity to get drugs for his own use, and to earn some form of income.

15. Drugs are often supplied on credit and drug suppliers who are not principals can often be trapped into a cycle of debt where they never really achieve close to the profits of the principals in such operation achieve.

16. Drug use and drug addiction is not an excuse for commission of offences such as this, but it can help explain how it came about. That said, so serious was his crime as is evidence by; his role, the quantities, the number of transactions that he must be removed from the community for some years, even making allowance for his subjective case, to which I will soon refer. A grave offence against the community requires appropriate and just punishment and that will be reflected in the sentence ultimately synthesised and announced today.

17. While the matter has a standard non‑parole period, and Mr Khan suggested that it fell below the middle of the range, I do not believe it is necessary to attempt to locate the objective seriousness of the offence on some hypothetical range. Otten that can be unhelpful because every offence and every offender is individual. But the ultimate sentence that I impose must still reflect the objective seriousness of what occurred, and the sentence reflects my assessment of it better than any specific adjective or word.

Parity

18. I have previously re-sentenced the co‑offender after an appeal from the Local Court. The facts in that matter were so different from the facts presently presented before me that both the Crown and Mr Khan, who appears for the offender, agree that no questions of parity arise.

Subjective case

19. McKeown was born in 1984. He wrote a letter to the Court, but he did not give evidence. Accordingly, I must be judicially sceptical of anything said in it. Nevertheless, what he said seems to be reflected in the other material before me. Since he went into custody, he appears to have done everything he could do to prove himself to the community and his family. They are sadly disappointed in him.

20. I am sure he now deeply regrets the harm he has caused his family and I accept that he now realises the harm his offending caused the community and members of it. Having experienced drug addiction himself and having, it would appear, come to grips with his addiction while in custody, he says he has made it a priority to change his life. The material before me indicates he is doing everything he can while in custody to prove that he can lead a productive life in the community.

21. McKeown has provided the Court with reference from the Gaol Chaplin, who speaks to his good works in the gaol. There are certificates indicating that he has applied himself in gaol.

22. He has spent his time on remand during the COVID pandemic and he has suffered restrictions placed upon all prisoners. To date he has been locked in his cell for 135 days. The community must understand what being locked in a cell means. Often you have to share the cell with one or more other individuals who you may not know well and may not like. You are provided with food in the room you use as a toilet. You are not able to do any extended exercise and you have no access to work or programs.

23. The pandemic has meant that many programs, including work, are unavailable, I regularly hear evidence from prisoners who say that nothing was made available to them. I accept that is often the case, but there are a few prisoners who despite the pandemic have taken sufficient pro‑active steps to ensure that they can get work in the gaol and that they can participate in any program made available to them. And while no one is to be punished for not taking these steps, where, as here, a prisoner does, that is a matter that I take into account in their favour as an indicator of future good behaviour.

24. I have the benefit of a report from Mr Doran, a Clinical Psychologist. He provides an uncontroversial summary of McKeown’s family and developmental history. He was raised by his mother, who is present in court. He has always felt loved and supported and he feels he has let her down. He reports she was strict with him, but he was always loved. He says he was painfully shy as a child, but he also engaged in relevant and appropriate sport and other po-social activities.

25. As a young man he came into contact with illicit drugs after he left home. He was able to secure work. He told his psychologist, and I am prepared to accept, that his drug use grew as he used methylamphetamine to help him get through working long hours. He said that during the COVID pandemic he was unable to secure enough jobs to meet both his modest lifestyle requirements and his drug addiction.

26. Mr Doran told me of McKeown’s relationship history and about a serious car accident for which still he requires medication. I am aware that apart from generic painkillers no other medication is available in the gaol.

27. McKeown reports with the aid of Justice Health he has detoxified, something he found difficult. He told his psychologist as bad as gaol is he is grateful for the opportunity it gave him as he has ceased his drug use. He believes that coming to gaol may have saved his life. He has expressed appropriate remorse and regret.

28. Mr Dornan says that he fits the diagnosis for; a generalised anxiety disorder, a persistent depressive disorder, and a substance abuse disorder. Mr Dornan is of the opinion McKeown would benefit from residential drug and alcohol treatment. It is all very well to detoxify in custody, but he has to be able to deal with the pressures on the outside.

29. I will structure the sentence to give him that opportunity but when and how he is released will be a matter for the State Parole Authority. That release may depend on what programs are available at the time. He will require assistance in returning to the community and will perhaps need to see a psychiatrist or psychologist. He may get that treatment in gaol, but Mr Dornan doubts it. McKeown still suffers from anxiety and depression and there is obviously some underlying features to his drug use that will need to be addressed.

Submissions

30. I have been assisted from submissions provided by Mr McGonigal, Solicitor for the Director of Public Prosecutions and McKeown’s counsel, Mr Khan. They do not differ significantly when it comes to matters those must be taken into account in assessing the gravity or the circumstances of the offending.

31. The Crown appropriately concede that the Court could be optimistic in assessing his prospects for rehabilitation, but they urge caution when it comes to unsworn matters of regret or remorse; which I hope I have exercised.

32. Mr Khan notes that compared to many other matters that fall within the life imprisonment category this matter, serious as it is, is at the bottom of the range in terms of drug quantity. And taking into account all objective factors, while not at the bottom, the subjective matters are very powerful indeed and they provide a basis for confidence that the offender when released, if given appropriate assistance, can turn his life around, as he has tried to do while he has been in custody.

Synthesis

33. Synthesising all of those matters. There has to be a significant penalty, but it can be moderated. I have sought to do so by fixing what I believe to be the minimum term necessary that he must spend in custody to meet the purposes of sentencing. By a finding of special circumstances, I will allow McKeown to be supervised in the community for a significant period.

34. In matters such as this deterrence of others and individuals is often achieved by the fact that the cell door closes and that is a factor that is very pertinent in a matter such as this.

35. Had it not been for the utilitarian value of your plea of guilty a sentence of five and a half years would have been imposed upon you.

Orders

36. There will be a sentence of four years and one month. The formal orders start by specifying the non‑parole period. There will be a non‑parole period one of two years and one month, that sentence will commence on 28 September 2021. McKeown will be eligible for consideration for release to parole on 27 October 2023. The balance of the term of two years expires on 27 October 2025.

37. I have already made appropriate orders with regard to the property.

38. I do not need to make a drug destruction order .

AUDIO VISUAL LINK CONCLUDED AT 2.51PM

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Amendments

14 March 2023 - Typographical error in catchword

Decision last updated: 14 March 2023